FIRST HORIZON ASSET SECURITIES INC.
MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
First Tennessee Bank National Association Memphis, Tennessee
000 Xxxxxxxxx Xxxx, Xxxxx 000 November 20, 2003
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
First Horizon Asset Securities Inc., a corporation organized
and existing under the laws of the State of Delaware (the
"Company"), may offer for sale to you and to each of the other
several underwriters, if any, participating in an underwriting
syndicate managed by you, from time to time its Mortgage Pass-
Through Certificates evidencing interests in pools of mortgage
loans (the "Certificates"). The Certificates may be issued in
various series, and within each series, in one or more classes,
in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class").
Each Series of the Certificates will be issued under a separate
Pooling and Servicing Agreement (each, a "Pooling and Servicing
Agreement") to be dated as of the respective cut-off date (each,
a "Cut-off Date") among the Company, as depositor, First
Horizon Home Loan Corporation, as seller and master servicer, you
and The Bank of New York, as trustee (the "Trustee"). Capitalized
terms used but not defined herein shall have the meanings given
to them in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and Servicing
Agreement will represent the entire beneficial ownership interest
in a trust fund (the "Trust Fund") established by such Pooling
and Servicing Agreement. The assets of each Trust Fund will
consist primarily of (i) one or more pools of conventional, fixed
rate, first lien, fully amortizing, one- to four-family
residential mortgage loans (the "Mortgage Loans") having the
original terms to maturity specified in the related Terms
Agreement referred to hereinbelow, (ii) mortgage pass-through
securities issued or guaranteed by Xxxxxx Xxx, Xxxxxx Xxx or
Xxxxxxx Mac, or (iii) private mortgage-backed securities backed
by first lien mortgage loans secured by one- to four-family
residential properties or participations therein. If so
specified in the related Terms Agreement, one or more elections
may be made to treat the assets of each Trust Fund as a real
estate mortgage investment conduit (each, a "REMIC") for federal
income tax purposes.
Whenever the Company determines to make an offering of
Certificates (each, a "Certificate Offering") pursuant to this
Agreement through you, it will enter into an agreement (the
"Terms Agreement") providing for the sale of specified Classes of
Offered Certificates (as defined below) to, and the purchase and
public offering thereof by, you and such other underwriters, if
any, selected by you as have authorized you to enter into such
Terms Agreement on their behalf (the underwriters in any such
Terms Agreement being referred to herein as "Underwriters," which
term shall include you whether acting alone in the sale of any
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Series of Certificates or as a member of the underwriting
syndicate). Each such Certificate Offering that the Company
elects to make pursuant to this Agreement shall be governed by
this Agreement, as supplemented by the related Terms Agreement.
Each Terms Agreement, which shall be substantially in the form
of Exhibit A hereto, shall specify, among other things, the
Classes of Certificates to be purchased by the Underwriters
(the "Offered Certificates"), the names of the Underwriters
participating in such offering (subject to substitution as
provided in Section 16 hereof) and the principal amount of
the Offered Certificates which each severally agrees to purchase,
the names of such other Underwriters, if any, acting as
co-managers with you in connection with each offering, the
principal balance or balances of the Offered Certificates, each
subject to any stated variance, and the price or prices at which
such Offered Certificates are to be purchased by the Underwriters
from the Company.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each Underwriter, as of the date of
the related Terms Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed
with the Securities and Exchange Commission (the "Commission")
for the registration under the Securities Act of 1933, as amended
(the "Act"), of mortgage pass-through certificates issuable in
series, which registration statement has been declared effective
by the Commission. Such registration statement, as amended to
the date of the related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
effective date of the Registration Statement, is hereinafter
called the "Registration Statement," and such prospectus, as such
prospectus is supplemented by a prospectus supplement relating to
the Offered Certificates of the related Series, each in the form
first filed after the date of the related Terms Agreement
pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act which were filed under the Exchange Act on or
before the date of such prospectus supplement (other than any
such incorporated documents that relate to Collateral Term Sheets
(as defined herein)) (such prospectus supplement, including such
incorporated documents (other than those that relate to
Collateral Term Sheets), in the form first filed after the date
of the related Terms Agreement pursuant to Rule 424(b) is
hereinafter called the "Prospectus Supplement"), is hereinafter
called the "Prospectus." Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the
Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the effective date of
the Registration Statement or the issue date of the Prospectus or
Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act.
(b) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any
amendments thereof and supplements thereto filed prior to the
date of the related Terms Agreement, conformed in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; on the date of the
related Terms Agreement and on each Closing Date (as
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defined in Section 3 below), the related Registration Statement
and the related Prospectus, and any amendments thereof and supplements
thereto, will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder; such
Registration Statement, at the time it became effective, did
not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
such prospectus, on the date of any filing pursuant to Rule
424(b) and on each Closing Date, will not include any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they are made, not
misleading; and the detailed description (each, a "Detailed
Description") filed in connection with any Pre-Funding
Arrangement referred to in such Prospectus, on each closing
date relating to the purchase of the related Subsequent
mortgage loans and the date of any filing thereof under
cover of Form 8-K, will not include any untrue statement of
a material fact or omit to state any information which such
Prospectus states will be included in such Detailed
Description; provided, however, that the Company makes no
representations or warranties as to the information
contained in or omitted from (A) such Registration Statement
or such Prospectus (or any supplement thereto) in reliance
upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter specifically
for use in the preparation thereof or (B) any Current Report
(as defined in Section 5(b) below), or in any amendment
thereof or supplement thereto, incorporated by reference in
such Registration Statement or such Prospectus (or any
amendment thereof or supplement thereto).
(c) The Certificates of the related Series will conform to the
description thereof contained in the related Prospectus; will
each, if rated at the time of issuance in one of the two highest
rating categories by a nationally recognized statistical rating
organization, be when issued a "mortgage related security" as
such term is defined in Section 3(a)(41) of the Exchange Act, and
will each on the related Closing Date be duly and validly
authorized, and, when validly executed, countersigned, issued and
delivered in accordance with the related Pooling and Servicing
Agreement and sold to the Underwriters as provided herein and in
the related Terms Agreement, will each be validly issued and
outstanding and entitled to the benefits of the related Pooling
and Servicing Agreement.
(d) Neither the issuance nor sale of the Certificates of the
related Series nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the
terms hereof or of the related Terms Agreement, will conflict
with any statute, order or regulation applicable to the Company
of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or with
any organizational document of the Company or any instrument or
any agreement under which the Company is bound or to which it is
a party.
(e) This Agreement and the related Terms Agreement have been
duly authorized, executed and delivered by the Company.
(f) At or prior to the related Closing Date, the Company will
have entered into the related Pooling and Servicing Agreement
and, assuming the due authorization,
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execution and delivery thereof by the other parties thereto, such
Pooling and Servicing Agreement (on such Closing Date) will constitute
the valid and binding agreement of the Company enforceable in
accordance with its terms, subject as to enforceability, to
bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights and to general principles of
equity (regardless of whether the enforceability of such
Pooling and Servicing Agreement is considered in a
proceeding in equity or at law).
2. PURCHASE AND SALE. Subject to the execution of the Terms
Agreement for a particular Certificate Offering and subject to
the terms and conditions and in reliance upon the representations
and warranties set forth in this Agreement and such Terms
Agreement, the Company agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Company, the respective
original principal amounts of the Offered Certificates set forth
in the applicable Terms Agreement opposite the name of such
Underwriter, plus any additional original principal amount of
Offered Certificates which such Underwriter may be obligated to
purchase pursuant to Section 16 hereof at the purchase price
therefor set forth in such Terms Agreement (the "Purchase
Price").
The parties hereto agree that settlement for all securities
sold pursuant to this Agreement and the applicable Terms
Agreement shall take place on the settlement date agreed upon at
the time of the related transaction and set forth as the "Closing
Date" in such Terms Agreement and not as set forth in Rule 15c6-
1(a) of the Exchange Act.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Offered Certificates of a Series shall be made at the offices of
Xxxxxxx Xxxxx LLP, Dallas, Texas, at 10:00 A.M., Dallas time, on
the Closing Date specified in the related Terms Agreement, which
date and time may be postponed by agreement between you and the
Company (such date and time being herein called the "Closing
Date"). Delivery of such Offered Certificates shall be made to
you for the respective accounts of the Underwriters against
payment of the Purchase Price thereof to or upon the order of the
Company by wire transfer in federal or other immediately
available funds or by check payable in federal funds, as the
Company shall specify no later than five full business days prior
to such Closing Date. Unless delivery is made through the
facilities of The Depository Trust Company, the Offered
Certificates shall be registered in such names and in such
authorized denominations as you may request not less than two
full business days in advance of each Closing Date.
The Company agrees to notify you at least two business days
before each Closing Date of the exact principal balance evidenced
by the Offered Certificates and to have such Offered Certificates
available for inspection, checking and packaging in Dallas,
Texas, no later than 12:00 noon on the business day prior to such
Closing Date.
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4. OFFERING BY THE UNDERWRITER. It is understood that the
Underwriters propose to offer the Offered Certificates of the
related Series for sale to the public as set forth in the related
Prospectus.
5. AGREEMENTS. The Company agrees with each Underwriter that:
(a) The Company will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Offered Certificates to be
filed pursuant to Rule 424 under the Act and will promptly advise
you when such Prospectus as so supplemented has been so filed, and
prior to the termination of the Certificate Offering to which such
Prospectus relates also will promptly advise you (i) when any
amendment to the related Registration Statement specifically relating
to such Offered Certificates shall have become effective or any
further supplement to such Prospectus has been filed, (ii)
of any request by the Commission for any amendment of such
Registration Statement or Prospectus or for any additional
information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such Registration
Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the
Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates
for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company
will not file any amendment of the related Registration
Statement or supplement to the related Prospectus (other
than any amendment or supplement specifically relating to
one or more Series of mortgage pass-through certificates
other than the Series that includes the related Offered
Certificates or any Exchange Act filings other than Current
Reports) unless the Company has furnished you and your
counsel with a copy for your respective review prior to
filing and you have consented to such filing. The Company
will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with
respect to the Offered Certificates of a Series that are
delivered by any Underwriter to the Company pursuant to Section 8
to be filed with the Commission on a Current Report on Form 8-K
(each such filing of such materials, a "Current Report") pursuant
to Rule 13a-11 under the Exchange Act on the business day
immediately following the later of (i) the day on which such
Computational Materials and Structural Term Sheets are delivered
to counsel for the Company by such Underwriter, and (ii) the date
on which this Agreement is executed and delivered. The Company
will cause any Collateral Term Sheet (as defined in Section 9
below) with respect to the Offered Certificates of a Series that
is delivered by any Underwriter to the Company in accordance with
the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule l3a-11 under the Exchange Act on
the business day immediately following the day on which such
Collateral Term Sheet is delivered to counsel for the Company by
such Underwriter. Each such Current Report shall be incorporated
by reference in the related Prospectus and the related
Registration Statement.
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(c) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the
Act, any event occurs as a result of which the related Prospectus
as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it
shall be necessary at any time to amend or supplement the related
Prospectus to comply with the Act or the rules thereunder, the
Company promptly shall prepare and file with the Commission,
subject to the penultimate sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(d) The Company will furnish to each Underwriter and counsel for
the Underwriters, without charge, as many signed copies of the
related Registration Statement (including exhibits thereto) and,
so long as delivery of a prospectus by such Underwriter or dealer
may be required by the Act, as many copies of the related
Prospectus and any supplements thereto as such Underwriter may
reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested
by you to qualify the Offered Certificates of a Series for sale
under the laws of such jurisdictions as the Underwriter may
designate, to maintain such qualifications in effect so long as
required for the distribution of such Offered Certificates and to
determine the legality of such Offered Certificates for purchase
by institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not qualified on the date of the related
Terms Agreement or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in
which it is not, on the date of the related Terms Agreement,
subject to such service of process.
(f) So long as the Offered Certificates of a Series are
outstanding, the Company will furnish to each Underwriter, upon
request, copies of the annual independent public accountants'
servicing report furnished to the Trustee pursuant to the related
Pooling and Servicing Agreement.
(g) Unless otherwise specified in the related Terms Agreement,
the Company will pay, and First Horizon Home Loan Corporation
will cause the Company to pay, all expenses incident to the
performance of the Company's obligations under this Agreement and
the applicable Terms Agreement (other than the expenses of
Deloitte & Touche LLP under Sections 8(c) and 9(c) hereof, the
Underwriters' due diligence expenses, the Underwriters' counsel
fees and the Underwriters' own expenses, which will be paid by
the Underwriters), including and without limitation those related
to: (i) the filing of the Registration Statement with respect to
the Certificates and all amendments thereto, (ii) the printing or
photocopying and delivery to the Underwriters, in such quantities
as you may reasonably request, of copies of this Agreement and
the Terms Agreement, (iii) the preparation, registration,
issuance and delivery to the Underwriters of the Certificates
underwritten pursuant to this Agreement, (iv) the fees and
disbursements of the Company's counsel and accountants, and of
any counsel rendering a closing opinion with respect to matters
of local law, (v) the qualification of
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the Certificates underwritten pursuant to this Agreement under
securities and Blue Sky laws and the determination of the
eligibility of the Certificates for investment, including filing
fees in connection therewith, (vi) the printing and delivery to
the Underwriters, in such quantities as they may reasonably request,
of copies of the Registration Statement with respect to the Certificates
underwritten pursuant to this Agreement and all amendments
thereto, of any preliminary prospectus and preliminary prospectus
supplement and of the Final Prospectus and all amendments and
supplements thereto and all documents incorporated therein (other
than exhibits to any Current Report), and of any Blue Sky Survey
and Legal Investment Survey, (vii) the printing or photocopying
and delivery to the Underwriters, in such quantities as you may
reasonably request, of copies of the applicable Pooling
Agreement, (viii) the fees charged by investment rating agencies
requested by the Company to rate the Certificates
underwritten pursuant to this Agreement, (ix) the fees and
expenses, if any, incurred in connection with the listing of
the Certificates underwritten pursuant to this Agreement on
any national securities exchange; and (x) the fees and
expenses of the Trustee and its counsel.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Offered
Certificates of any Series shall be subject to the accuracy in
all material respects of the representations and warranties on
the part of the Company contained in this Agreement, as
supplemented by the related Terms Agreement, as of the respective
dates thereof and the related Closing Date, to the accuracy of
the statements of the Company made in any applicable officers'
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations under this
Agreement and such Terms Agreement and to the following
additional conditions applicable to the related Certificate
Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) Xxxxxxx Xxxxx LLP, counsel for the Company, shall have
furnished to you an opinion addressed to the Underwriters, dated
the related Closing Date, to the effect that:
(i) this Agreement and the related Terms Agreement have been
duly executed and delivered by the Company under the laws of the
State of New York;
(ii) the related Pooling and Servicing Agreement has been duly
executed and delivered by the Company under the laws of the State
of New York and is a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its
terms;
(iii) the Offered Certificates, when duly executed and
countersigned by the Trustee in accordance with the related
Pooling and Servicing Agreement,
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will be validly issued and outstanding and entitled to the
benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and the trust created thereunder is not required to be
registered under the Investment Company Act of 1940, as amended;
(v) such counsel confirms that the related Registration
Statement is effective under the Act and, to the best of such
counsel's knowledge, no stop order with respect thereto has been
issued, and no proceeding for that purpose has been instituted or
threatened by the Commission; such Registration Statement (except
the financial statements and schedules and other financial and
statistical data included therein and the documents incorporated
by reference therein, as to which such counsel need express no
view), at the time it became effective and the related Prospectus
(except the financial statements and schedules, the other
financial and statistical data included therein and the documents
incorporated by reference therein), as of the date of the Prospectus
Supplement conformed in all material respects to the requirements of
the Act and the rules and regulations thereunder; and no information
has come to the attention of such counsel that causes it to believe
that (A) such Registration Statement (except the financial statements
and schedules and the other financial and statistical data included
therein and the documents incorporated by reference therein, as to
which such counsel need express no view) at the time it became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (B) such
Prospectus or any amendment or supplement thereto (except the
financial statements and schedules and the other financial and
statistical data included therein), as of the date of the Prospectus
Supplement, or at the related Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(vi) the statements set forth under the heading "Description of
the Certificates" in the related Prospectus, insofar as such
statements purport to summarize certain provisions of the related
Pooling and Servicing Agreement and the related Offered
Certificates, provide a fair summary of such provisions;
(vii) the statements set forth in the related Prospectus
under the headings "Certain Legal Aspects of the Mortgage Loans,"
"Material Federal Income Tax Consequences" (insofar as they
relate specifically to the purchase, ownership and disposition of
the related Offered Certificates) and "ERISA Considerations"
(insofar as they relate specifically to the purchase, ownership
and disposition of such Offered Certificates), to the extent that
they constitute matters of law or legal conclusions, provide a
fair summary of such law or conclusions;
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(viii) assuming compliance with all provisions of the related
Pooling and Servicing Agreement, for federal income tax purposes,
(A) if any election is made to treat the assets of the Trust Fund
as a REMIC: the related Trust Fund (and any specified subgrouping
therein) will qualify as a REMIC pursuant to Section 860D of the
Internal Revenue Code of 1986, as amended (the "Code"), each
Class of Certificates of the related Series, other than the
related Residual Class or Classes, will constitute a class of
"regular interests" in the related REMIC within the meaning of
the Code, and each Class of such Certificates specified in the
related Prospectus as a Class of Residual Certificates will
constitute the "residual interest" in the related REMIC within
the meaning of the Code; (B) if no such REMIC election is made:
the Trust Fund will be treated as a "grantor trust;" and
(ix) assuming that some or all of the Offered Certificates
of the related Series shall be rated at the time of issuance in
one of the two highest rating categories by a nationally
recognized statistical rating organization, each Offered
Certificate so rated will be at the time of issuance, a
"mortgage related security" as such term is defined in
Section 3(a)(41) of the Exchange Act.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to this Agreement, the
related Terms Agreement or the related Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto
other than the Company. Such opinion may be qualified, insofar as it
concerns the enforceability of the documents referred to therein, to the
extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights in general and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Such opinion
may be further qualified as expressing no opinion as to (x) the statements
in the related Prospectus under the heading "Certain Legal Aspects of the
Mortgage Loans" except insofar as such statements relate to the laws of the
State of New York and the laws of the United States, and (y) the statements
in such Prospectus under the headings "ERISA Considerations" and "Material
Federal Income Tax Consequences" except insofar as such statements relate
to the laws of the United States. In addition, such opinion may be qualified
as an opinion only on the laws of the States of New York and Texas and the
federal laws of the United States of America.
(c) Xxxxxxx Xxxxx LLP, counsel for the Company, shall have
furnished to you an opinion addressed to the Underwriters, dated
the related Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power to own its properties, to
conduct its business as described in the related Prospectus and
to enter into and perform its obligations under this Agreement,
the related Terms Agreement, the related Pooling and Servicing
Agreement and the Certificates of the related Series;
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(ii) The Company has full power and authority to sell the related
Mortgage Loans as contemplated herein and in the related Pooling
and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the
related Pooling and Servicing Agreement have been duly
authorized, executed and delivered by the Company under the laws
of the State of Delaware;
(iv) The issuance and sale of the Offered Certificates have been
duly authorized by the Company;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
the Company of the transactions contemplated herein or in the
related Pooling and Servicing Agreement, except such as may be
required under the blue sky laws of any jurisdiction and such
other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in
this Agreement, the related Terms Agreement or the related
Pooling and Servicing Agreement, nor the fulfillment of the terms
of the related Certificates, the related Pooling and Servicing
Agreement, this Agreement or the related Terms Agreement will
conflict with or violate any term or provision of the articles of
incorporation or by-laws of the Company or any statute, order or
regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Company and will not conflict with, result
in a breach or violation or the acceleration of or constitute a
default under the terms of any indenture or other agreement or
instrument known to such counsel to which the Company is a party
or by which it is bound; and
(vii) There are no actions, proceedings or investigations
pending or, to the best knowledge of such counsel, threatened
before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement or the
related Certificates, (ii) seeking to prevent the issuance of the
Certificates of the related Series or the consummation by the
Company of any of the transactions contemplated by this
Agreement, such Terms Agreement or such Pooling and Servicing
Agreement, or (iii) which might materially and adversely affect
the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, such Terms
Agreement, such Pooling and Servicing Agreement or the related
Certificates.
In rendering his or her opinion such counsel may rely
as to matters of fact, to the extent deemed proper and as
stated therein, on certificates of responsible officers of
the Company or public officials. In addition, such opinion
may be qualified as an opinion only on the general
corporation laws of the State of Delaware.
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(d) In-house counsel for First Horizon Home Loan Corporation (or
its ultimate parent) shall have furnished to you an opinion
addressed to the Underwriters, dated the related Closing Date, to
the effect that:
(i) First Horizon Home Loan Corporation has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Kansas, with corporate
power to own its properties, to conduct its business as described
in the related Prospectus and to enter into and perform its
obligations under this Agreement, the related Terms Agreement,
the related Pooling and Servicing Agreement and the Certificates
of the related Series;
(ii) First Horizon Home Loan Corporation has full power and
authority to sell and master service the related Mortgage Loans
as contemplated herein and in the related Pooling and Servicing
Agreement;
(iii) This Agreement, the related Terms Agreement and the
related Pooling and Servicing Agreement have been duly
authorized, executed and delivered by First Horizon Home Loan
Corporation under the law of the State of Kansas;
(iv) The issuance and sale of the Offered Certificates have been
duly authorized by First Horizon Home Loan Corporation;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
First Horizon Home Loan Corporation of the transactions
contemplated herein or in the related Pooling and Servicing
Agreement, except such as may be required under the blue sky laws
of any jurisdiction and such other approvals as have been
obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in
this Agreement, the related Terms Agreement or the related
Pooling and Servicing Agreement, nor the fulfillment of the terms
of the related Certificates, the related Pooling and Servicing
Agreement, this Agreement or the related Terms Agreement will
conflict with or violate any term or provision of the articles of
incorporation or by-laws of First Horizon Home Loan Corporation
or any statute, order or regulation applicable to First Horizon
Home Loan Corporation of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over First Horizon Home Loan Corporation and will not conflict
with, result in a breach or violation or the acceleration of or
constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel to which First
Horizon Home Loan Corporation is a party or by which it is bound,
other than such conflicts, breaches and violations or defaults
which, individually or on a cumulative basis, would not have a
material adverse effect on First
-11-
Horizon Home Loan Corporation and its subsidiaries, taken as a
whole, or on the issuance and sale of the Certificates or the
consummation of the transactions contemplated hereby; and
(vii) There are no actions, proceedings or investigations
pending or, to the best knowledge of such counsel, threatened
before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement or the
related Certificates, (ii) seeking to prevent the issuance of the
Certificates of the related Series or the consummation by First
Horizon Home Loan Corporation of any of the transactions
contemplated by this Agreement, such Terms Agreement or such
Pooling and Servicing Agreement, or (iii) which might materially
and adversely affect the performance by First Horizon Home Loan
Corporation of its obligations under, or the validity or
enforceability of, this Agreement, such Terms Agreement, such
Pooling and Servicing Agreement or the related Certificates.
In rendering his or her opinion such counsel may rely as to matters
of fact, to the extent deemed proper and as stated therein, on certificates
of responsible officers of First Horizin Home Loan Corporation or public
officials. In addition, such opinion may be qualified as an opinion which
is based solely upon a review of the general corporations law of the State
of Kansas without regard to the interpretational case law thereof.
(e) You shall have received from XxXxx Xxxxxx LLP, counsel for
the Underwriters, such opinion or opinions, dated the related
Closing Date, with respect to the issuance and sale of the
Certificates of the related Series, the related Registration
Statement, the related Prospectus and such other related matters
as the Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as the Underwriters
may reasonably request for the purpose of enabling them to pass
upon such matters.
(f) The Company shall have furnished to you a certificate of the
Company, signed by the President or any Vice President or the
principal financial or accounting officer of the Company, dated
the related Closing Date, to the effect that the signers of such
certificate have carefully examined the related Registration
Statement (excluding any Current Reports and any other documents
incorporated by reference therein), the related Prospectus, any
Detailed Description (excluding any related Current Report), this
Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the related Closing Date with the same effect as if made on
such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
-12-
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to their knowledge,
threatened; and
(iii) nothing has come to their attention that would lead
them to believe that such Registration Statement (excluding any
Current Report) contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the related Prospectus (excluding any related Current
Report) contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that
any Detailed Description includes any untrue statement of a
material fact or omits to state any information which the
Prospectus (or the related Prospectus Supplement) states will be
included in such Detailed Description.
(g) Counsel for the Trustee shall have furnished to you an
opinion addressed to the Underwriters, dated the related Closing
Date, to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a New York banking corporation in good standing under
the laws of the State of New York with corporate power to own its
properties and conduct its business as presently conducted by it,
to conduct business as a trustee and to enter into and perform
its obligations under the related Pooling and Servicing
Agreement;
(ii) the related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes
the legal, valid and binding agreement of the Trustee enforceable
against the Trustee in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally and to judicial discretion, and general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(iii) the Trustee has duly accepted its appointment as
trustee under the related Pooling and Servicing Agreement;
(iv) no consent, approval, authorization or order of any
New York or federal court or government agency or body is required
on the part of the Trustee for the consummation of the transactions
contemplated in the related Pooling and Servicing Agreement,
except such as may be required under any federal or state
securities law; and
(v) the performance on the part of the Trustee of any of the
transactions contemplated in the related Pooling and Servicing
Agreement does not conflict with or result in a breach or
violation of any term or provision of, or constitute a default
under, the Articles of Organization, as amended, or By-Laws
-13-
of the Trustee, or any New York or federal statute or regulation
applicable to the Trustee, or to such counsel's knowledge, any
indenture or other agreement or instrument to which the Trustee
is a party or by which it is bound, or, to such counsel's
knowledge, any order of any state or federal court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Trustee.
In addition, such counsel shall furnish to you such opinions as to the
treatment of the Trust Fund for purposes of New York tax law as are reasonably
satisfactory to the Underwriter.
(h) KPMG LLP shall have furnished to you a letter addressed to
the Underwriters, dated as of the date of the related Terms
Agreement, in form and substance satisfactory to you, stating in
effect that they have performed certain specified procedures as a
result of which they have determined that such information as you
may reasonably request of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of First
Horizon Home Loan Corporation) set forth in the related Prospectus
Supplement under the caption "Servicing of Mortgage Loans -
Foreclosure, Delinquency and Loss Experience" agrees with the
accounting records of First Horizon Home Loan Corporation,
excluding any questions of legal interpretation.
(i) Deloitte & Touche LLP shall have furnished to you a letter
addressed to the Underwriters, dated as of the related Closing
Date, in form and substance satisfactory to you, stating in
effect that they have performed certain specified procedures as a
result of which they have determined that such information as you
may reasonably request of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and which is obtained from an analysis of a sample of the
Mortgage Loans included in the related pool) set forth in the
related Prospectus Supplement under the caption "The Mortgage
Pool" and in any Detailed Description relating to such Prospectus
Supplement is mutually consistent and agrees with the accounting
records of the Company and, where applicable, the related
Mortgage Loan files of the Company, excluding any questions of
legal interpretation. In addition, if applicable, such
accountants shall have furnished to you a letter addressed to the
Underwriters, dated as of the related Closing Date, which shall
include a statement or statements to the effect that based upon
the assumptions and methodology agreed to by the Company (and
which is consistent with the manner in which any final PAC
Balances, TAC Balances, Scheduled Balances, Maximum and Minimum
Scheduled Balances or any other scheduled balances are to be
calculated as set forth in the related Prospectus), all of which
shall be described by reference in such letter, such accountants
shall have verified the mathematical accuracy of any final PAC
Balances Table, TAC Balances Table, Scheduled Balances Table,
Maximum or Minimum Scheduled Balances Table or other scheduled
balances table attached as an exhibit to the related Pooling and
Servicing Agreement.
(j) Deloitte & Touche LLP shall have furnished to you (addressed
to the Underwriters) and the Company a letter or letters, dated
as of the date of the related
-14-
Terms Agreement, in form and substance satisfactory to you and the
Company, including, without limitation, statements, if applicable,
to the effect that:
(i) based upon the assumptions and methodology set forth in the
related Prospectus, all of which shall be described by reference
in such letter, they recomputed the percentages of initial
principal balance outstanding as of each of the Distribution
Dates (as defined in such Prospectus) indicated and the weighted
average lives of each Class of Offered Certificates at each of
the indicated percentages of the applicable Prepayment
Assumption, and they compared the recomputed percentages and
weighted average lives to the corresponding percentages and
weighted average lives set forth in the related tables and found
them to be in agreement;
(ii) based upon the assumptions and methodology set forth in such
Prospectus, all of which shall be described by reference in such
letter, they have verified the mathematical accuracy of any
Scheduled Final Distribution Dates for the Offered Certificates,
PAC Balances, TAC Balances, Scheduled Balances,
Maximum and Minimum Scheduled Balances or any other scheduled
balances set forth in such Prospectus for each indicated
Distribution Date, and have verified the mathematical accuracy
of any initial Effective Ranges of any PAC Certificates, Scheduled
Certificates or other scheduled Certificates set forth in such
Prospectus; and
(iii) based upon the assumptions and methodology set forth in
such Prospectus, all of which shall be described by reference in
such letter, they have verified the mathematical accuracy of the
pretax yields to maturity and, if applicable, aggregate cash
flows of any Class of Certificates for which such pre-tax yields
and, if applicable, aggregate cash flows are set forth in such
Prospectus at the indicated percentages of the Prepayment
Assumption and, if applicable, at the indicated values of COFI,
LIBOR or any other index, as applicable.
(k) The Offered Certificates of the related Series shall have
received the ratings specified in the related Terms Agreement
(the "Required Ratings").
(l) Prior to the related Closing Date, the Company shall have
furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably
request.
(m) If any Certificates of the related Series are to be sold to
any other underwriter and/or offered in reliance upon an
exemption from the registration requirements of the Act, the sale
at or prior to the related Closing Date of such Certificates to
the purchaser thereof shall have occurred.
(n) Subsequent to the date of the related Terms Agreement, there
shall not have been any change, or any development involving a
prospective change, in or affecting the business or properties of
the Company which the Underwriters conclude in
-15-
their respective reasonable judgment, after consultation with the
Company, materially impairs the investment quality of the Offered
Certificates of the related Series so as to make it impractical
or inadvisable to proceed with the public offering or the
delivery of such Offered Certificates as contemplated by the
related Prospectus.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects with respect to
the particular Offered Certificates of a Series when and as
provided in this Agreement and the related Terms Agreement, or if
any of the opinions and certificates mentioned above or elsewhere
in this Agreement and the related Terms Agreement shall not be in
all material respects reasonably satisfactory in form and
substance to the Underwriters and their counsel, this Agreement
(with respect to the related Offered Certificates) and the
related Terms Agreement and all obligations of the Underwriters
hereunder (with respect to the related Offered Certificates) and
thereunder may be canceled at, or at any time prior to, the
related Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company and First Horizon Home Loan Corporation jointly
and severally agree to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within
the meaning of the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the
Exchange Act, or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement relating to the Offered Certificates of the applicable
Series as it became effective or in any amendment or supplement
thereof, or in such Registration Statement or the related
Prospectus, or in any amendment thereof, or in any Detailed
Description referred to in such Prospectus (or the related
prospectus Supplement) or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agree to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) neither the Company nor First Horizon Home Loan
Corporation will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein (A) in reliance upon
and in conformity with written information furnished to the
Company or First Horizon Home Loan Corporation, as the case may
be, as herein stated by or on behalf of any Underwriter
specifically for use in connection with the preparation thereof
or (B) in any Current Report or any amendment or supplement
thereof, except to the extent that any untrue statement or
alleged untrue statement therein or omission therefrom results
(or is alleged to have resulted) directly from an error (a
"Mortgage Pool Error") in the information concerning the
characteristics of the Mortgage Loans furnished by the Company or
First Horizon
-16-
Home Loan Corporation, as the case may be, to any Underwriter in
writing or by electronic transmission that was used in the
preparation of either (x) any Computational Materials or ABS Term
Sheets (or amendments or supplements thereof) included in such
Current Report (or amendment or supplement thereof) or (y) any
written or electronic materials furnished to prospective investors
on which the Computational Materials or ABS Term Sheets (or
amendments or supplements) were based and (ii) such indemnity with
respect to any Corrected Statement (as defined below) in such
Registration Statement or the related Prospectus (or any amendment
or supplement thereto) shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom
the person asserting any loss, claim, damage or liability purchased
the Certificates of the related Series that are the subject thereof
if such person did not receive a copy of an amendment or supplement
to such Registration Statement or the related Prospectus at or prior to
the confirmation of the sale of such Certificates and the untrue
statement or omission of a material fact contained in such Registration
Statement or the related Prospectus (or any amendment or supplement
thereto) was corrected (a "Corrected Statement") in such other amendment
or supplement and such amendment or supplement was furnished by the
Company or First Horizon Home Loan Corporation, as the case may be, to
such Underwriter prior to the delivery of such confirmation. This
indemnity agreement will be in addition to any liability which the
Company and First Horizon Home Loan Corporation may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its
officers, and each person or entity (including each of its
directors and officers) who controls the Company within the
meaning of the Act or the Exchange Act, to the same extent as the
foregoing indemnities from the Company and First Horizon Home
Loan Corporation to the Underwriter, but only with reference to
(A) written information furnished to the Company by or on behalf
of such Underwriter specifically for use in the preparation of
the documents referred to in the foregoing indemnity with respect
to the related Series, or (B) any Computational Materials or ABS
Term Sheets (or amendments or supplements thereof) furnished to
the Company by such Underwriter pursuant to Section 8 or Section
9 and incorporated by reference in such Registration Statement or
the related Prospectus or any amendment or supplement thereof
(except that no such indemnity shall be available for any losses,
claims, damages or liabilities, or actions in respect thereof,
resulting from any Mortgage Pool Error). This indemnity
agreement will be in addition to any liability which the
Underwriters may otherwise have. The Company acknowledges,
unless otherwise specified in writing by an Underwriter, that the
statements set forth in the first sentence of the last paragraph
appearing on the cover page of the related Prospectus Supplement
as such statements relate to such Offered Certificates and the
second sentence of the first paragraph and the first sentence of
the second paragraph in each case under the heading "Method of
Distribution" in such Prospectus Supplement as such statements
relate to such Offered Certificates constitute the only
information furnished in writing by or on behalf of such
Underwriter for inclusion in the related Prospectus (other than
any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) furnished to the Company by such
Underwriter), and such Underwriter confirms that such statements
are correct.
-17-
(c) Promptly after receipt by an indemnified party under Section
7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against
the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 7, except to the extent that
the omission to so notify the indemnifying party causes or
exacerbates a loss. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so
to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party in the
case of subparagraph (a) or (b), representing the
indemnified parties under subparagraph (a) or (b), who are
parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified
party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying
party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 7 is due in accordance with its terms but is for
any reason held by a court to be unavailable from the Company,
First Horizon Home Loan Corporation or any Underwriter, on
grounds of policy or otherwise, or if the indemnified party
failed to give notice under paragraph (c) of this Section 7 in
respect of a claim otherwise subject to indemnification in
accordance with paragraph (a) or (b) of this Section 7, the
Company, First Horizon Home Loan Corporation and such Underwriter
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal and other expenses reasonably
incurred in connection with investigating or defending same) to
which the Company, First Horizon Home Loan Corporation and such
Underwriter may be subject, as follows:
-18-
(i) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which do not arise out of or are
not based upon any untrue statement or omission of a material
fact in any Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) or in any written or
electronic materials distributed to prospective investors on
which the Computational Materials are based, in such proportion
so that such Underwriter is responsible for that portion
represented by the difference between the proceeds to the Company
in respect of the Offered Certificates appearing on the cover
page of the Prospectus Supplement for the related Series and the
total proceeds received by such Underwriter from the sale of such
Offered Certificates (the "Underwriting Discount"), and the
Company and First Horizon Home Loan Corporation are jointly and
severally responsible for the balance; provided, however, that in
no case shall such Underwriter be responsible under this
subparagraph (i) for any amount in excess of such Underwriting
Discount applicable to the Offered Certificates purchased by such
Underwriter pursuant to this Agreement and the related Terms
Agreement; and
(ii) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which arise out of or are based
upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof) or in any written or electronic materials
distributed to prospective investors on which the Computational
Materials are based, in such proportion as is appropriate to
reflect the relative fault of the Company or First Horizon Home
Loan Corporation, as the case may be, on the one hand and such
Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations; provided, however, that in no
case shall such Underwriter be responsible under this
subparagraph (ii) for any amount in excess of the Underwriting
Discount applicable to the Offered Certificates purchased by such
Underwriter pursuant to this Agreement and the related Terms
Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact in such Computational Materials or ABS
Term Sheets (or any amendments or supplements thereof or such
written or electronic materials) results from information
prepared by the Company or First Horizon Home Loan Corporation,
as the case may be, on the one hand or such Underwriter on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission.
Notwithstanding anything to the contrary in this Section 7(d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either the Act
or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or First Horizon Home
Loan
-19-
Corporation, as the case may be, within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company or First Horizon
Home Loan Corporation, as the case may be, shall have the same rights to
contribution as the Company or First Horizon Home Loan Corporation, as the
case may be, subject in each case to the immediately preceding sentence of
this paragraph (d).
8. COMPUTATIONAL MATERIALS AND STRUCTURAL TERM SHEETS.
(a) On the business day before the date on which the Current
Report relating to the Offered Certificates of a Series is
required to be filed by the Company with the Commission pursuant
to Section 5(b) hereof, each Underwriter shall deliver to the
Company five complete copies of all materials provided by such
Underwriter to prospective investors in such Offered Certificates
that constitute (i) "Computational Materials" within the meaning
of the no-action letter dated May 20, 1994 issued by the Division
of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and
Xxxxxx Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance
of the Commission to the Public Securities Association (together,
the "Xxxxxx Letters"), the filing of which material is a
condition of the relief granted in such letter (such
materials being the "Computational Materials"), and (ii)
"Structural Term Sheets" within the meaning of the no-action
letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter"), the filing of
which material is a condition of the relief granted in such
letter (such materials being the "Structural Term Sheets").
Each delivery of Computational Materials and Structural Term
Sheets to the Company pursuant to this paragraph (a) shall
be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the
address specified in Section 3 hereof and one copy of such
materials to the Company.
(b) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the
Act, it shall be necessary to amend or supplement the related
Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or Structural Term
Sheets provided by any Underwriter pursuant to this Section 8 or
the omission to state therein a material fact required, when
considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make
the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it
shall be necessary to amend or supplement any Current Report
relating to any Computational Materials or Structural Term Sheets
to comply with the Act or the rules thereunder, such Underwriter
shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment or supplement which will
effect such compliance.
(c) Each Underwriter shall cause Deloitte & Touche LLP to
furnish to the Company a letter, dated as of the date on which
you deliver any Computational Materials or Structural Term Sheets
to the Company pursuant to Section 8(a), in form
-20-
and substance satisfactory to the Company, stating in effect that
they have verified the mathematical accuracy of any calculations
performed by such Underwriter and set forth in such Computational
Materials or Structural Term Sheets, as applicable.
9. COLLATERAL TERM SHEETS.
(a) On the business day immediately following the date on which
any Collateral Term Sheet (as defined in the PSA Letter) was
first delivered to a prospective investor in such Offered
Certificates, each Underwriter shall deliver to the Company five
complete copies of all materials provided by such Underwriter to
prospective investors in the Offered Certificates that constitute
"Collateral Term Sheets." Each delivery of a Collateral Term
Sheet to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel
for the Company on behalf of the Company at the address specified
in Section 3 hereof and one copy of such materials to the
Company. (Collateral Term Sheets and Structural Term Sheets are,
together, referred, to herein as "ABS Term Sheets.")
(b) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the
Act, it shall be necessary to amend or supplement the related
Prospectus as a result of an untrue statement of a material fact
contained in any Collateral Term Sheets provided by an Underwriter
pursuant to this Section 9 or the omission to state therein a material
fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein
or necessary to make the statements therein, when read in
conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to
amend or supplement any Current Report relating to any
Collateral Term Sheets to comply with the Act or the rules
thereunder, such Underwriter shall prepare and furnish to
the Company for filing with the Commission an amendment or
supplement which will correct such statement or omission or
an amendment or supplement which will effect such
compliance.
(c) Each Underwriter shall cause Deloitte & Touche LLP to
furnish to the Company a letter, dated as of the date on which
you deliver any Collateral Term Sheets to the Company pursuant to
Section 9(a), in form and substance satisfactory to the Company,
stating in effect that they have verified the mathematical
accuracy of any calculations performed by such Underwriter and
set forth in such Collateral Term Sheets, as applicable.
10. TERMINATION. This Agreement (with respect to a particular
Certificate Offering) and the related Terms Agreement shall be
subject to termination in your absolute discretion, by notice
given to the Company prior to delivery of and payment for the
related Offered Certificates, if prior to the related Closing
Date (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State
authorities, or (iii) there shall have occurred any outbreak or
escalation of hostilities or other calamity, event or crisis the
effect of which on the financial
-21-
markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market such Offered Certificates.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
agreements, representations, warranties, indemnities and other
statements of the Company (or First Horizon Home Loan
Corporation, as the case may be) or its officers and of each
Underwriter set forth in or made pursuant to this Agreement and
the related Terms Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or the Company (or First Horizon Home Loan
Corporation, as the case may be) or any of the officers,
directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the related Offered
Certificates. The provisions of Section 7 hereof shall survive
the termination or cancellation of this Agreement and the related
Terms Agreement.
12. SUCCESSORS. This Agreement and the related Terms Agreement
will inure to the benefit of and be binding upon the parties
hereto and thereto and their respective successors and the
officers, directors and controlling persons referred to in
Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder.
No purchaser of any Offered Certificate from any Underwriter
shall be deemed a successor or assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS
AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED THEREIN.
14. MISCELLANEOUS. This Agreement, as supplemented by the
related Terms Agreement, supersedes all prior and contemporaneous
agreements and understandings relating to the subject matter
hereof. This Agreement and the related Terms Agreement or any
term of each may not be changed, waived, discharged or terminated
except by an affirmative written agreement made by the party
against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement and the
related Terms Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof or
thereof.
15. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to you, will be
delivered to it at the address first above written; or if sent to
the Company, will be delivered to First Horizon Asset Securities
Inc., 0000 Xxxxxxx Xxx, Xxxxxx, Xxxxx 00000, with a copy to First
Tennessee National Corporation, 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Xx., Esq.
16. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail on the Closing Date to purchase
the Offered Certificates which it or they are obligated to
purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Certificates"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-
defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Certificates in such
amounts as may be
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agreed upon and upon the terms herein set forth and under the applicable
Terms Agreement. If, however, you have not completed such arrangements
within such 24-hour period, then:
(a) if the aggregate original principal amount of Defaulted
Certificates does not exceed 10% of the aggregate original
principal amount of the Certificates to be purchased pursuant to
such Terms Agreement, the non-defaulting Underwriters named in
such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective
underwriting obligations thereunder bear to the underwriting
obligations of all non-defaulting Underwriters; and
(b) if the aggregate original principal amount of Defaulted
Certificates exceeds 10% of the original principal amount of the
Offered Certificates to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
any liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 16 and nothing in
this Agreement shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or such applicable Terms Agreement,
either you or the Company shall have the right to postpone the
Closing Date for a period of time not exceeding seven days in
order to effect any required changes in the Registration Statement
or in any other documents or arrangements.
* * *
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a
counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement between the Company and you.
Very truly yours,
FIRST HORIZON ASSET SECURITIES INC.
By:____________________________
Name:________________________
Title:_______________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:___________________________
Name:_______________________
Title:______________________
FIRST HORIZON HOME LOAN CORPORATION
By:___________________________
Name:_______________________
Title:______________________
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EXHIBIT A
FIRST HORIZON ASSET SECURITIES INC.
REMIC MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated [ ], 200_
between the Company and the Underwriter)
First Horizon Asset Securities Inc. [ ]
4000 Horizon Way [Date]
Xxxxxx, Xxxxx 00000
Each of [ ] (the
"Underwriters") severally agrees, subject to the terms and
provisions herein and of the captioned Underwriting Agreement
(the "Underwriting Agreement"), to purchase such Classes of
Series ____-__ Certificates specified in Section 2(a) hereof (the
"Offered Certificates"). This letter supplements and modifies
the Underwriting Agreement solely as it relates to the purchase
and sale of the Offered Certificates described below. The Series
____-__ Certificates are registered with the Securities and
Exchange Commission by means of an effective Registration
Statement (No. 333-__). Capitalized terms used and not defined
herein have the meanings given them in the Underwriting
Agreement.
Section 1. The Mortgage Pool. The Series ____-__
Certificates shall evidence the entire beneficial ownership
interest in a mortgage pool (the "Mortgage Pool") of
conventional, fixed rate, fully amortizing one- to four-family
residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of _______________ __, ____ (the
"Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool:
$[ ] aggregate principal balance as of the
Cut-off Date, subject to [an upward or downward variance of
up to [ ]%, the precise aggregate principal balance to be
determined by the Company][a permitted variance such that
the aggregate Scheduled Principal Balance thereof will be
not less than $[ ] or greater than $[ ].
(b) Original Terms to Maturity: The original term to
maturity of each Mortgage Loan included in the Mortgage Pool
shall be between _ and _ years.
Section 2. The Certificates. The Offered Certificates shall
be issued as follows:
(a) Classes: The Offered Certificates shall be issued
with the following Class designations, interest rates and
principal balances, subject in the aggregate to
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the variance referred to in Section 1(a)[and, as to any
particular Class, to an upward or downward variance of up to
[ ]%]:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
--------------- --------------- ------------- ----------------
(b) The Offered Certificates shall have such other
characteristics as described in the related Prospectus.
Each of the Underwriters agrees, severally and not jointly,
subject to the terms and conditions contained herein and in the
Underwriting Agreement, to purchase the principal balances of the
Classes of Certificates specified opposite its name below:
Series [ ]
Designation [Underwriter] [Underwriter]
------------------- -------------------- --------------------
Section 3. Purchase Price: The Purchase Price for each
Class of the Offered Certificates shall be the Class Purchase
Price Percentage therefor (as set forth in Section 2(a) above) of
the initial Class Certificates Principal Balance thereof plus
accrued interest at the rate of [ ]% per annum from and including
the Cut-off Date up to, but not including,________ __, ____ (the
"Closing Date").
Section 4. Required Ratings: The Offered Certificates shall
have received Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be
made to treat the assets of the Trust Fund as a REMIC.] [The
Trust Fund will be treated as a "grantor trust" for federal
income tax purposes.]
[Section 6. Additional Expenses:]*
-----------------
* to be inserted if applicable
A-2
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a
counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement between the Underwriters and
the Company.
Very truly yours,
CO-MANAGER:
[UNDERWRITER]
By:__________________________
Name:______________________
Title:_____________________
CO-MANAGER:
[UNDERWRITER]
By:__________________________
Name:______________________
Title:_____________________
The foregoing Agreement
is hereby confirmed and accepted
as of the date first above written.
FIRST HORIZON ASSET SECURITIES INC.
By:____________________________
Name:_______________________
Title:______________________
FIRST HORIZON HOME LOAN CORPORATION
By:_________________________
Name:_____________________
Title:____________________
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